William Bryant Brantley, etc. v City of Danville

COURT OF APPEALS OF VIRGINIA
Present: 	Chief Judge Moon, Judges Benton and Coleman
Argued at Salem, Virginia
WILLIAM BRYANT BRANTLEY, s/k/a
WILLIAM BRYAN BRANTLEY
v. 	Record No. 1061-94-3 	MEMORANDUM OPINION*
BY JUDGE SAM W. COLEMAN III
CITY OF DANVILLE 	FEBRUARY 20, 1996
FROM THE CIRCUIT COURT OF THE CITY OF DANVILLE
James F. Ingram, Judge
Glenn L. Berger (Shreve & Berger, on brief),
for appellant.
Robert L. Adams, Jr., Assistant Attorney for
the Commonwealth, for appellee.
William Bryant Brantley was charged and convicted of driving
under the influence of alcohol in violation of Danville City
Ordinance §§ 21-48 and 21-49.3. 	Brantley contends that
§ 21-49.3 was void at the time of his arrest because it
prescribed a lesser punishment than Code § 18.2-270. 	We reject
this contention and affirm the defendant's conviction.
Danville City Ordinance § 21-49.3 makes driving in Danville
while under the influence of drugs or intoxicants unlawful and
provides the punishment for the offense. 	On November 13, 1993,
the date of the defendant's arrest, § 21-49.3 incorporated the
penalties set forth in Virginia Code § 18.2-270 as amended and in
effect on July 1, 1992. 	Effective July 1, 1993, Code § 18.2-270
* Pursuant to Code § 17-116.010 this opinion is not
designated for publication.

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had been amended to define a separate offense with an enhanced
penalty for driving under the influence "while transporting a
person seventeen years of age or younger." 	Danville did not
amend § 21-49.3 to include this enhanced penalty offense until
November 16, 1993, three days after the defendant's arrest.
Thus, the defendant contends that the Danville ordinance in
effect at the time of his arrest is void because it violated Code
§ 15.1-132, which provides that no local "ordinance shall provide
for a lesser punishment than that prescribed by general law for a
similar offense."
A defendant can challenge only the portion of an ordinance
that affects him. 	Sos v. Commonwealth, 14 Va. App. 862, 865, 419
S.E.2d 426, 428 (1992). 	In the present case, the record contains
no evidence suggesting that the defendant was transporting a
person seventeen years of age or younger, or that the trial court
considered that offense and an enhanced sentence for transporting
such a person. 	Accordingly, the enhanced penalty provided by the
July 1, 1993, amendment to Code § 18.2-270 did not apply to the
defendant, and Danville City Ordinance, as applied in this case,
conformed to Code § 18.2-270. 	We therefore affirm the
defendant's conviction.
Affirmed.

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BENTON, J., dissenting.
By statute, the General Assembly has specifically authorized
local governments to enact ordinances prohibiting driving under
the influence only under the following terms:
The governing bodies of cities, towns and
counties may make ordinances prohibiting the
driving of motor vehicles, . . . in such
cities, towns and counties by any person
while under the influence of any . . . liquid
beverage or article containing alcohol or
wine or under the influence of any other
self-administered intoxicant or drug of
whatsoever nature, and may prescribe fines
and other punishment for violations of such
ordinances. . . . 	No such ordinance shall
provide for a lesser punishment than that
prescribed by general law for a similar
offense. 	Such ordinances may provide the
same penalties for violations thereof as are
provided by general law for similar offenses
. . . and the judgment of conviction for a
violation of any such ordinance shall operate
to deprive the person convicted of the right
to drive or operate any motor vehicle, engine
or train in this Commonwealth to the same
extent as if such conviction had been under
the general law of the Commonwealth for a
similar offense, or to a greater extent if so
provided in such ordinance.
Code § 15.1-132 (emphasis added).
In Commonwealth v. Rivera, 18 Va. App. 103, 442 S.E.2d 410
(1994), this Court ruled as follows:
Article VII, Section 2 of the Constitution of
Virginia limits the powers of local
governments to exercise only those powers
that the General Assembly may provide by
general law or special act. 	Dillon's Rule
provides that "the powers of [local
governments] are fixed by statute and are
limited to those conferred expressly or by
necessary implication." 	Any ordinance not
passed in accord with these principles is

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void and unconstitutional.
Id. at 107, 442 S.E.2d at 412 (citation omitted). 	Thus, the City
of Danville was required to conform its ordinances "in strict
accord" with state law. 	Boyles v. City of Roanoke, 179 Va. 484,
487, 19 S.E.2d 662, 663 (1942). 	It failed to so do.
Brantley was charged under the City of Danville Ordinance
§ 21-48 which states as follows:
The provisions of Section 18.2-266 of the
Code of Virginia, 1950, as amended, as in
effect of July 1, 1992, pertaining to driving
motor vehicles while intoxicated, are hereby
adopted and incorporated mutatis mutandis in
the chapter by reference, pursuant to the
authority contained in Section 46.2-1313 of
the Code of Virginia, 1950, as amended.
The penalty for a violation of Ordinance § 21-48 is specified as
follows in Ordinance § 21-49.3:
The provisions of Section 18.2-270 of the
Code of Virginia, 1950, as amended, as in
effect on July 1, 1992, pertaining to penalty
for driving while intoxicated, subsequent
offense, and prior conviction, are hereby
adopted and incorporated mutatis mutandis in
this chapter by reference, pursuant to the
authority contained in Section 46.2-1313 of
the Code of Virginia, 1950, as amended.
These ordinances were in effect on the date of the offense.
The state statutes in effect on November 13, 1993, the date of
the offense, provided greater punishment than was specified under
the city ordinances. 	The city ordinances were not amended to
conform to state law until November 16, 1993.
The city ordinance in effect at the time of this proceeding
violated state law because it provided for a lesser punishment

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for violation of the city's ordinance prohibiting driving under
the influence of alcohol than was mandated by Code § 18.2-270 for
violation of the general law for the same offense. 	See Parker v.
City of Newport News, 17 Va. App. 253, 436 S.E.2d 290 (1993).
Because the city failed to timely amend its ordinance, it
exercised power not granted by the legislature. 	The ordinance's
proscription was ultra vires and void ab initio. 	School Board v.
Burley, 225 Va. 376, 379, 302 S.E.2d 53, 55 (1983).
Because the ordinance was not in conformity with the express
authorization of state law and because it adopted the provisions
of Code § 18.2-266 as a whole, I would hold that the entire
ordinance was void ab initio. 	Thus, I would hold that Sos v.
Commonwealth, 14 Va. App. 862, 419 S.E.2d 426 (1992), does not
bar Brantley from challenging the void ordinance. 	Brantley's
challenge is not that the ordinance is vague; he contends that
the ordinance is void. 	Furthermore, severance cannot cure the
Dillon Rule violation.